Wednesday, 6:00 pm
GOP Headquarters
28120 Jefferson Ave.
Temecula, CA
(in the Rosa's Cafe center at Jefferson and Del Rio, in the back next to the tattoo shop)
Constitution Class Handout
Instructor: Douglas V. Gibbs
Lesson 11
Debt and Supremacy
Prior
Debt
Article VI begins with “All Debts contracted and
Engagements entered into, before the Adoption of this Constitution, shall be as
valid against the United States under this Constitution, as under the
Confederation.”
The first clause of Article VI legally transfers all
debts and engagements under the Articles of Confederation into the new
government. This is not only the debts
and engagements by the United States Government under the Articles of
Confederation, but also includes all debts of each of the several States. After ratification of the Constitution, each
and every State would be debt free, and all debt would be held by the federal
government. This condition, according to
the Constitution, would be the last time the States would legally be in
debt. In Article I, Section 10, the
Constitution forbids the States from issuing bills of credit.
Alexander Hamilton, the first Treasury Secretary,
suggested that the United States should remain in perpetual debt. Maintaining a perpetual debt, he explained,
would be a mechanism that could assist in holding together the union, since
States would be unlikely to secede when they are responsible for a part of the
national debt.
Thomas Jefferson disagreed with Hamilton. He recognized the necessity to maintain the
ability to borrow, and the need for credit, but found a national debt to be a
potentially dangerous proposition.
"Though much an enemy to the system of
borrowing, yet I feel strongly the necessity of preserving the power to borrow.
Without this, we might be overwhelmed by another nation, merely by the force of
its credit." -- Thomas Jefferson to the Commissioners of the Treasury,
1788.
"I am anxious about everything which may
affect our credit. My wish would be, to possess it in the highest degree, but
to use it little. Were we without credit, we might be crushed by a nation of
much inferior resources, but possessing higher credit." -- Thomas
Jefferson to George Washington, 1788.
"Though I am an enemy to the using our credit
but under absolute necessity, yet the possessing a good credit I consider as
indispensable in the present system of carrying on war. The existence of a
nation having no credit is always precarious." -- Thomas Jefferson to
James Madison, 1788.
"I wish it were possible to obtain a single
amendment to our Constitution. I would be willing to depend on that alone for
the reduction of the administration of our government; I mean an additional
article taking from the Federal Government the power of borrowing. I now deny
their power of making paper money or anything else a legal tender. I know that
to pay all proper expenses within the year would, in case of war, be hard on
us. But not so hard as ten wars instead of one. For wars could be reduced in
that proportion; besides that the State governments would be free to lend their
credit in borrowing quotas." -- Thomas Jefferson to John Taylor, 1798.
"I sincerely believe... that the principle of
spending money to be paid by posterity under the name of funding is but
swindling futurity on a large scale." -- Thomas Jefferson to John
Taylor, 1816.
“If the American people ever allow private banks to
control the issue of their currency,
first by inflation, then by deflation, the banks…will deprive the people
of all property until their children
wake-up homeless on the continent their fathers conquered…. The issuing power
should be taken from the banks and restored to the people, to whom it properly
belongs.” -- Thomas Jefferson in the debate over the Re-charter of the Bank
Bill (1809)
“I believe that banking institutions are more
dangerous to our liberties than standing armies.” -- Thomas Jefferson
“… The modern theory of the perpetuation of debt
has drenched the earth with blood, and crushed its inhabitants under burdens
ever accumulating.” -- Thomas Jefferson
The
Supremacy Clause
Article VI, Clause 2: “This Constitution, and the
Laws of the United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.”
Perhaps one of the most misunderstood and misapplied
clauses of the U.S. Constitution, the Supremacy Clause has been used in
line with the concept of Federal Supremacy.
Federal Supremacy is a concept our first Chief Justice, John Jay, believed
in. During his stint on the Supreme
Court Jay worked feverously to establish broader powers for the courts, and to
transform the federal government into a national government. He quit the Supreme Court after failing,
pursuing an opportunity to be governor of New York.
Chief Justice John Marshall spent his 36 years on the
Supreme Court attempting to establish, and expand federal supremacy, and
largely succeeded. Marshall is embraced
by statists as the one to develop federal supremacy in his opinion of the Mcculloch
v. Maryland case in 1819 where the Court invalidated a Maryland law that
taxed all banks in the State, including a branch of Alexander Hamilton’s
creation, the national Bank of the United States. Marshall held that although none of the enumerated
powers of Congress explicitly authorized the incorporation of the national bank, the Necessary and Proper
Clause provided the basis for Congress's action. Marshall concluded that "the
government of the Union, though limited in its power, is supreme within its
sphere of action."
During the 1930s, under Franklin Delano Roosevelt, the
Court invoked the Supremacy Clause to give the federal government broader
national power. The federal government
cannot involuntarily be subjected to the laws of any state, they proclaimed,
and is therefore supreme in all laws and actions.
The legally, and commonly, accepted definition, as a
result of the courts and the persistence of, regarding the Supremacy Clause, is
that all federal laws supersede all State laws.
The commonly understood definition of the Supremacy
Clause is in error. To understand the
true meaning of this clause, one must pay close attention to the language used.
If the federal government has a law on the books, and
the law was made under the authorities granted by the States in the United
States Constitution, and a state, or city, passes a law that contradicts that
constitutional federal law, the federal government’s law is supreme based on
The Supremacy Clause. However, if the
federal law is unconstitutional because it was made outside constitutional
authority, it is an illegal law, and therefore is not supreme over similar
State laws.
An example of the federal government acting upon the
assumption that all federal law is supreme over State law is when the medical
marijuana laws emerged in California in 1996 after the passage of Proposition
215. Though I do not necessarily agree
with the legalization of the casual recreational use of marijuana, and believe
“weed” should be heavily regulated like any other pharmaceutical drug if being
used for medicinal purposes, the actual constitutional legality of the issue
illustrates my point quite well.
California’s law legalizing marijuana for medicinal
purposes was contrary to all federal law that identified marijuana as being
illegal in all applications. Using the
commonly accepted authority of the federal government based on their definition
of the Supremacy Clause, federal agents began raiding and shutting down medical
marijuana labs in California. However,
there is no place in the U.S. Constitution that gives the federal government
the authority to regulate drugs, nor has there been an amendment passed to
grant that authority to the federal government.
From a constitutional point of view, then, the raids on medical
Marijuana labs in California were unconstitutional actions by the federal
government.
The Supremacy Clause applies only to federal laws that
are constitutionally authorized.
Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana
laws are constitutional because they are not contrary to any constitutionally
authorized federal laws.
Language plays an important part in the Constitution,
and The Supremacy Clause is no different.
The clause indicates that State laws cannot be contrary to
constitutionally authorized federal laws.
For example, Article I, Section 8, Clause 4 states that it is the job of
the U.S. Congress to establish an uniform rule of naturalization. The
word "uniform" means that the rules for naturalization must apply to
all immigrants, and to all states, in the same way. If a state was to then pass a law that
granted citizenship through the naturalization process in a way not consistent
with federal law, the State would be guilty of violating the Supremacy Clause.
In the case of Arizona’s immigration law, S.B. 1070 in
2010, the argument by the federal government that Arizona’s law is contrary to
federal law was an erroneous argument.
Assuming, for just a moment, that the federal government has complete
authority over immigration (which is not true since immigration is one of those
issues in which the federal government and the States have concurrent powers),
Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law was similar
to federal immigration law. The only
difference was that Arizona’s law disallowed racial profiling.
The federal government’s argument when the United
States Department of Justice filed a lawsuit against the state of Arizona in
the U.S. District Court for the District of Arizona on July 6, 2010, was that
the law must be declared invalid because it interfered with the immigration
regulations exclusively vested in the federal government. Therefore, a State cannot enforce immigrations
laws if the federal government decides not to, nor can a State pass law
regarding an issue that the federal government has sole authority over. In this way, Arizona was considered to be
acting “contrary” to the federal government.
Article I, Section 9, Clause 1, and Article I, Section
10 in the final clause, provides that States hold concurrent authorities
regarding immigration, and securing the border.
Therefore, the federal government’s argument that they held sole
authority over the issue was in error.
Eric Holder, when he filed the lawsuit in the U.S.
District Court also acted unconstitutionally because in Article III, Section 2,
the Constitution states that all cases “in which a State shall be Party, the
supreme Court shall have original Jurisdiction.” Since the case was the United States v.
Arizona, the case, constitutionally, could only be filed with the United
States Supreme Court.
The language in Article VI, Clause 2 reveals clearly
that only laws made under the authorities granted to the federal government
have supremacy. Article VI, Clause 2
reads, “This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.”
The clause establishes three things as being
potentially the supreme law of the land.
First, “This Constitution.”
Second, “Laws of the United States which shall be made in pursuance
thereof.” And Third, all Treaties
made, or which shall be made.”
“This Constitution” is the supreme law of the
land. Understanding that first part of
the clause is easy.
The second one has a condition attached to it. “Laws of the United States which shall be
made in pursuance thereof.”
In pursuance thereof?
In pursuance of what?
Of “This Constitution.”
Therefore, if a law is not made “in pursuance” of
“This Constitution,” then the law is an illegal law, and cannot possibly be the
supreme law of the land.
Unconstitutional laws are not the supreme law of the land, which reveals
that all federal laws are not the supreme law of the land. Illegal law made outside the authorities
granted by the Constitution of the United States cannot legally be the supreme
law of the land.
After “pursuance thereof” in the clause, a semicolon
is used. The semicolon separates
“Treaties” from the “Laws of the United States.” The separation by the semicolon means that
“in pursuance thereof” applies to “Laws of the United States,” but not to
“Treaties.” This means that treaties not
in line with the principles of the Constitution can be accepted as the supreme
law of the land.
The concern over treaties was not great, because the
Senate was the voice of the States, and the States are the final arbiters of
the Constitution. If the States are
willing to ratify what would be considered an unconstitutional treaty, they
must be given the chance. Therefore, “in
pursuance thereof” does not apply to treaties.
The importance of this part of the Supremacy Clause
revealed itself during Jefferson’s Louisiana Purchase in 1803. As discussed in Article I, Section 8, Clause
17, the federal government does not have the authority to buy or own land
unless it is purchased from a State, by the consent of the State legislature,
for the purpose of needful buildings.
The details of the Louisiana Purchase did not fit Article I, Section 8,
Clause 17’s requirement. To get around
that, President Thomas Jefferson negotiated the Louisiana Purchase with France
through treaties. Since treaties were
ratified by the States through the Senate, it kept the States involved in the
process, and made the purchase the law of the land even though technically it
was not constitutional.
Oath
or Affirmation to Support This Constitution
Article VI, Clause 3 indicates that all elected
officials are bound to support the Constitution by oath or affirmation. An oath
is to God, and an affirmation is not a sworn oath to God. This was offered because the Founding Fathers
recognized that not everyone believed in God, and that there were some
religions that believed swearing to God to be a sin.
The final clause of Article VI also states that there
shall be no religious test to serve.
This was not the case inside the States.
This was a provision only required of the federal government. At the State level, established churches, and
religious tests were the norm. The
Danbury Baptists in Connecticut appealed to President Jefferson because they
felt they were being mistreated by the Puritans. The Baptists felt they were being treated
like second class citizens in a State dominated by the Puritan Church. Jefferson replied that the federal government
could not help them. It was a State
issue.
Alexis de Tocqueville observed when he visited the
United Sates in the 1830s that religious freedom had truly come to The
States. In America, the politicians
prayed, and the pastors preached politics, yet neither controlled the
other. He concluded America’s greatness
was a result of the good in America, coining the term American Exceptionalism.
Terms:
Concurrent
Powers – Government powers shared by the State and the federal government.
Exceptionalism - The
condition of being exceptional or unique; the theory or belief that something,
especially a nation, does not conform to a pattern or norm.
National
Bank - In the United States, a bank chartered by the federal government authorized
to issue notes that serve as currency; a bank owned and administered by the
government, as in some European countries.
Oath - A solemn
sworn declaration, or promise, to a deity (God), to fulfill a pledge.
Supremacy
Clause - Clause in the Constitution that indicates that all federal laws, and
treaties, passed under the authorities granted by the Constitution, are the
Supreme Law of the Land
Questions for Discussion:
1. What was the
common opinion by the Founding Fathers regarding a perpetual national debt?
2. What
limitations on national debt did the Framers of the United States Constitution
consider?
3. It is a
common belief in today’s society that all federal laws are supreme to all State
and municipal laws. Why is this belief
wrong?
4. How does the
Supremacy Clause enable Nullification?
5. Why does the
Constitution offer the opportunity for both oaths, and affirmations?
Resources:
John Taylor, New Views of the Constitution of the United
States; Washington City: By Way and Gideon
(1823)
Joseph
Andrews, A Guide for Learning and
Teaching The Declaration of Independence and The U.S.
Constitution
- Learning from the Original Texts Using Classical Learning Methods of the
Founders; San Marcos: The Center for Teaching the Constitution (2010).
Madison’s
Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume
Four – Article I I, Section 8, Clause 5 to Article VII;
Indianapolis: Liberty Fund (1987)
Sam Cornell, The
Other Founders: Anti-Federalism and the
Dissenting Tradition in America, 1788-1828; Chapel Hill:
University of North Carolina Press (1999)
Copyright:
Douglas V. Gibbs, 2015
